MY BABY JUST CARES FOR ME: Eve Tushnet replies to Jonathan Rauch and sundry

[Part of a disorganized series of semi-random reflections on Rauch's Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.]

For a while there, I thought Jonathan Rauch's Gay Marriage wouldn't mention sex at all.

He kept talking about care and commitment, and detailing the ways that marriage would make that care and commitment easier. All the ways that legal marriage ties us to others, imposes responsibilities even as it confers rights. As Jonathan nicely puts it, "Most of what are usually thought of as the legal benefits of marriage are really gifts with strings attached. Or maybe strings with gifts attached."

But see, that understanding of marriage doesn't fence it off as much as Jonathan wants. It especially doesn't fence off marriage when you consider how Jonathan presents the single life: alone, helpless, loveless, anchorless, without support or succour.

I read this and think, OK now. I'm single. My health is... sub-optimal. My mental state, very much ditto. (I'm sure you haven't noticed!) And there's nobody I want to have sex with who also wants to have sex with me. So am I consigned to the outer darkness, where there is weeping and gnashing of teeth?

Jonathan needs to confine marriage to sexual/romantic relationships. Otherwise he might have to accept caring, committed marriages between sisters, cousins, mother and daughter, or several people. (He tries to avoid the last problem by citing the free-rider problem, but frankly, that's just weird. We don't worry that parents will neglect their kids because the other parent could take care of the kids. We don't worry that children will neglect their parents because their siblings might do the work. Why would we assume that people who choose the responsibilities of marriage would shank simply because somebody else might not shank?) Clearly we can care and be committed to more than one person; clearly we can care and be committed to people to whom we already share relations too close for marriage but too distant for the specific rights and responsibilities that marriage currently confers.

So eventually Jonathan does have to talk about sex, baby. And he describes eloquently his belief that sex, love, and marriage should be connected. But a few questions remain.

First: Yes, connecting (certain relationships involving!) sex, love, and loyalty is one huge function of marriage. But Jonathan has already said that one core function of marriage need not define the institution: Although one major function of marriage is to hook children to mothers and fathers, that function cannot, for Jonathan, limn the boundaries of marriage. So why can sexual/romantic relationships set the boundaries? Why not sexless but deeply committed relationships?

Should sex be part of the norm of marriage, or should the norm be restricted solely to commitment and care? Should we encourage people to marry even in situations where we think it's best that they care for one another, but we do not think it's best that they have sex? If not, these seem to be parallel arguments to the arguments that marriage is how we link children to mothers and fathers. And yet those arguments were found, by SSM advocates, insufficient to define the boundaries of marriage. Why is sex/romance more central to marriage than childrearing?

Is the "marital act" a sexual act?
posted by Eve at 4:00 PM VOTE

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